(영문) 서울중앙지방법원 2017.11.3. 선고 2017고합713 판결

Of the facts charged in the instant case, the charge of forging private documents as of September 21, 2015 and uttering of private documents is not guilty.

Reasons

Criminal History Office

On September 21, 2015, the Defendant was willing to withdraw the balance or shares deposited in the accounts, etc. in which the deposit deposit money in the G Building managed by F is deposited, with the intent to keep the passbook and seal of F in the process of inheritance due to the death of F, and with the knowledge of the account password in the process of inheritance by the death of F. F. The Defendant was willing to withdraw the balance or shares deposited in the accounts, etc.

1. Forgery of private documents, uttering of falsified investigation documents, violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud), and fraud

On September 23, 2015, the Defendant entered “H”, “H” and “F” in the column for the account of the withdrawal money located at the Yando Center in Seo-dong, Seo-gu, Seo-gu, Seo-gu, Seo-gu, Sung-gu, Seo-gu, Pyeong-si, Seo-gu, the Defendant forged one sheet of withdrawal money in the name of F with respect to rights and obligations for the purpose of exercising the seal affixed by the FF’s prior seal affixed on the F’s name, and issued a forged statement to the employee of the Yan securities in his name that knew of the forgery at that address, as if he had been authorized by F to withdraw his deposit from the said account, and deceiving the employee of the Yan securities and received the withdrawal from the employee of the Yan securities under the name of deposit under the name of F, i.e., the 1,907, 434,4266.

In addition, from around September 25, 2015 to around September 25, 2015, the Defendant, without authority, forged 9 pages, such as FF’s private document Nos. 2 to 10,00,000 of the list of offenses, with the intention of exercising the rights and obligations as indicated in the separate sheet Nos. 2 to 10,00,000 won, and issued 1,95,47,486 won in total, and 389,581,216, 108,910,892, 17,77,779,417, 100 shares, 50,000 shares, 200 days in total, and 70 shares and shares owned by the Defendant, and received 389,581,216 shares and shares in the victim’s private securities investment trust, and 389,581,000 won in the same manner.

2. Computer and other fraudulent means;

On September 27, 2015, the Defendant had access to the Internet homepage of the Bank by using a computer located therein in Seoul, and had access to the Internet homepage of the Bank without authority as to the information processing device of the Bank, and had, without authority as to the information processing device of the Bank, entered the Internet banking code, password, etc. connected to the bank account in F, and transferred the amount of KRW 15,00,000 to the bank account in the name of the Defendant from F to the bank account in the name of the Defendant.

Summary of Evidence

1. Partial statement of the defendant;

1. Partial statements in the police statement of M;

1. A receipt, specification of transactions, certified copy, family relation certificate, and death certificate (F);

Application of Statutes

1. Article relevant to the facts constituting an offense and the selection of punishment;

Article 3(1)2 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes, Article 347(1) of the Criminal Act, Article 347(1) of the Criminal Act, Article 347(1) (a) of the Criminal Act, Article 347-2 of the Criminal Act, Article 347-2 of the Criminal Act, Article 231 of the Criminal Act, Article 231 of the Criminal Act, Article 234 and Article 231 of the Criminal Act, Article 234 of the Criminal Act, Article 234 and Article 231 of the Criminal Act

1. Aggravation for concurrent crimes;

Article 37 (former part of Article 37, Article 38 (1) 2, and Article 50 (Aggravated Punishment, etc. of Specific Economic Crimes with the largest punishment) of the Criminal Act

1. Discretionary mitigation;

Articles 53 and 55(1)3 of the Criminal Act (The following consideration for the reasons for sentencing):

1. Suspension of execution;

Article 62(1) of the Criminal Act (The following grounds for sentencing has been repeatedly taken into consideration for favorable circumstances)

Grounds for conviction

1. Summary of the defendant's assertion

The defendant withdraws money from the deceased's account and paid inheritance tax in order to secure financial resources to pay inheritance tax as the representative of co-inheritors after the deceased's death, according to the meaning of the net F (hereinafter referred to as "the deceased"), so the defendant did not have any intention to commit fraud or fraudulentation of private documents.

2. Relevant legal principles

A. The crime of forging a document is established as the legal interest protected by the public interest in the credibility of the document as to the authenticity of the document. As such, if a private document prepared for the purpose of uttering has the form and appearance sufficient to believe that it is a document prepared within the authority of the person in question, the crime of forging a private document is established. As long as the person in question has already died before the date of preparation of the document, the crime of forging a private document is also established as there is a risk of undermining the public confidence. Considering that there is a need to protect the public confidence in the document as to the private document in the name of the deceased person, even if the person in charge of the document has already died, there was a risk of undermining the public confidence in the document if the document has already been prepared on the premise of the fact that the person in charge of the document has already been alive or that there was a risk of undermining the public confidence in the document, and thus, the establishment of the crime of forging a private document cannot be denied on the ground that the consent of the person who died in the document is presumed (see, e.

B. Fraud is a crime established by deceiving another person to receive property or acquiring pecuniary benefits from the defective intent resulting from deception. The essence of fraud is the acquisition of property or pecuniary benefits from deception, and it does not require that the other party actually suffers pecuniary loss (see, e.g., Supreme Court Decision 2003Do7828, Apr. 9, 2004).

In the case of exercise of rights by means of deception, if such deception is to the extent that it is not acceptable as a means of exercise of rights by social norms, the act belonging to the exercise of rights and the deception belonging to the said means are to constitute fraud.

(See Supreme Court Decision 2009Do295 Decided July 9, 2009, etc.)

3. Determination

A. Facts of recognition

Comprehensively taking account of the evidence duly adopted and examined by the court, the Defendant: (a) as the deceased died on September 21, 2015 on or around September 22, 2015; (b) as indicated in attached Table No. 2 through No. 10, Sept. 23, 2015 through September 25, 2015; and (c) deposited money, etc. in the name of the deceased from September 23, 2015 to September 25, 2015; (d) transferred KRW 2.78 billion in total from the deceased’s account to his/her own account; and (e) transferred KRW 15 million from the deceased’s account using Internet banking on September 27, 2015 to his/her own account; and (e) the Defendant paid KRW 2.780,700,000,000,000 to the deceased’s account on September 30, 2015; and (e) withdrawn the text message from the deceased’s account.

B. Determination on the crime of forging documents

1) Even if the Defendant was delegated the authority to dispose of property, such as deposits, before the death of the deceased, barring any special circumstance, it shall be deemed that the delegation relationship is terminated upon the death of the deceased (Article 690 of the Civil Act). Even if the delegation relationship is terminated as above, if there is an urgent circumstance, the Defendant, who is the mandatary, may continue to perform his/her duties until he/she is able to perform the delegated duties (Article 691 of the Civil Act). On the other hand, a will contrary to the legal requirements and methods prescribed by law to clarify the truth of the testator and prevent legal disputes and confusion arising therefrom, shall be null and void even if it conforms to the testator’s genuine intent (see Supreme Court Decision 2009Da9768, May 14, 2009).

2) In the instant case, it does not appear that the Defendant had an urgent reason to withdraw the deceased’s deposit, etc. without agreement or consultation with other co-inheritors, and even if, as alleged by the Defendant, the deceased entrusted the Defendant with the authority to dispose of the property, such as deposit, etc., including his/her own follow-up business operations, as argued by the Defendant, this constitutes the disposal of inherited property, and thus, it does not take effect unless the method prescribed by the Act is actually a testament (Article 10

3) Furthermore, since the withdrawal money slip is a document to the effect that a person who is originally alive withdraws money in his/her own account against a financial institution, it is deemed that there was a risk of undermining the public credit in relation to the document by preparing and exercising the withdrawal money slip in his/her name.

4) Therefore, it is reasonable to deem that the Defendant had had intention to forge private documents and display private documents in an incomplete manner.

C. Determination on fraud crime

1) In light of the various circumstances revealed in the records and arguments of this case, the Defendant appears to have voluntarily withdrawn or transferred the deposits, etc. of the Deceased, etc. on the ground that, after reporting the death of the Deceased, it is no longer possible to use the deceased’s deposits, etc. in inheritance tax payment, and it is not easy to withdraw from the deceased’s account.

2) In general, in order for co-inheritors to withdraw financial assets, such as the deposits of the inheritee, it is reasonable to change the name of the deposit owner to the co-inheritors according to the procedures set by the relevant financial institution by attending a family relation certificate, etc.

3) Therefore, if the Defendant filed a claim for payment of the money in the name of the deceased by unlawful means, such as forging or exercising the said statement, and received the payment, this is beyond the permissible limit as a means of exercising the right by social norms, and thereby constitutes deception in fraud, and the Defendant’s fraud is sufficiently recognized. Even if the Defendant, as one of co-inheritors, has a purpose of raising funds for the payment of inheritance tax, or there is no substantial damage to the financial institution, the victim, does not affect the establishment of fraud.

Reasons for sentencing

1. Scope of applicable sentences under Acts: Imprisonment for one year and six months to twenty-two years; and

2. Scope of recommendations according to the sentencing criteria;

[Determination of Punishment] General Fraud. Type 3 (at least 500 million won, less than 5 billion won)

[Special Sentencing Doctrines] Reductions: Where the content of deceptions is minor to the extent that it does not fit the substantive facts.

Aggravations: Where a person commits a crime by actively mobilization of the method of forging documents;

[Scope of Recommendation] Three to Six years of imprisonment (Basic Area)

3. Determination of sentence;

The crime of this case is committed by the Defendant, a Samnam of the Deceased, who concealed the death of the Deceased, in his name and received approximately KRW 2.7 billion deposits, stocks, etc. from a financial institution. In light of the method of the crime, the number of damages, etc., the nature of the crime and the circumstances are not somewhat weak.

However, the Defendant appears to have used considerable portion of the funds so withdrawn as above only for the payment of inheritance tax by co-inheritors and did not have acquired it individually. The deceased’s intent is derived from the crime of this case in the process of arranging inherited property in consideration of the deceased’s intent. This case is derived from inheritance disputes over the punishment of this case, and the Defendant’s birth among co-inheritors indicates that the Defendant’s decision is respected.

In addition to these various circumstances, the defendant's age, character and environment, relationship with the victim, circumstances after the crime, and various circumstances shown in the oral argument are determined as the order to lower the range of recommended sentencing guidelines, and the execution thereof is suspended.

The acquittal portion

1. The summary of the facts charged (attached Form 1 Part No. 1 of the annual list of crimes)

On September 21, 2015, the Defendant entered 'H', 'H0 million won in the column of the withdrawn money account', 'F' in the column of the withdrawal amount, and 'F' in the applicant column, respectively, in the office of the party branch office located at the Press Center, and presented a forged statement of money in the name of F with the aim of attaching the F's seal prior to his/her possession on his/her name, and received KRW 370,000,000,000 from the employee of the other securities branch office at the address.

2. Summary of the defendant's lawsuit;

The Defendant, like the facts charged, has withdrawn KRW 370 million deposit of the Deceased deposited in the victim’s beta tasp securities. However, the Deceased, before his birth, donated the Defendant’s Alanz insurance policy and the building in Istacheon-si P with the above KRW 370 million so that he may pay gift tax, so there was no intention to commit the crime of intentional fraud and defraudation of the private document by the Defendant.

3. Determination

A. There are some police statements and written applications for the change of insurance, etc. as evidence that correspond to or correspond to the facts charged in this part. However, in full view of the various evidences duly adopted and investigated by this court, the following facts and circumstances can be revealed.

1) The Defendant consistently stated from the investigative agency to this court that, from July 8, 2015 to the time of this court, the deceased would donate Alaniban pension insurance and the pertinent P building from around July 8, 2015, and the gift tax accordingly would be paid in large amount. Accordingly, on September 21, 2015, the Defendant donated the said insurance and the building, and then withdrawn KRW 370 million from the teach securities account in the name of the deceased before the deceased’s death.

2) Around 2002, the Deceased established, around April 2004, newly constructed G building in Q Q Q in Gangnam-gu, Seoul, and divided rent into rights for children. From around 2005, the Deceased donated the land in Gangnam-gu and the above PP land to children, including the Defendant. In the process, the Deceased was directly managing the passbook in the name of his/her family, and paid the acquisition tax, registration tax, or registration cost of the gift (Evidence 52), and the Deceased did not specially have special relation to the disposal or distribution of the property with his/her family members, and it appears that he/she managed and disposed of the property by himself/herself even though he/she was aged from July 8, 2015 to around 83 years of age.

3) While the Deceased was hospitalized at the Seoul National University Hospital on August 27, 2015 after undergoing a flap cancer diagnosis and repeated hospital treatment on or around May 2015, he/she was hospitalized at the Seoul National University Hospital as a result of the flap cancer examination, but transferred to the R Hospital on September 16, 2015. On September 20 of the same month, he/she was hospitalized at the Seoul National University Hospital on September 21, 2015, and died on or around 22:38 of the same day on the following day. However, on September 1, 2015, the Deceased was in a state of consciousness at the time of the doctor of the Seoul National University University Hospital on September 1, 2015, and was able to communicate normally (Evidence 2).

4) The deceased’s removal of a different form of punishment, and there is no special motive for the Defendant to donate the above insurance, P, and KRW 370 million to his/her family. However, examining the property that the deceased donated to his/her family before his/her birth, the Defendant’s husband and wife did not particularly take over a large amount of assets to the Defendant. The Defendant’s husband and wife took care of the deceased’s hospital hospital’s hospital hospital’s hospitalization and pain treatment (Evidence 61) while he/she took place (Evidence 61). On July 12, 2012, the Deceased and the insured were designated as the beneficiary as the Defendant on August 31, 2015 (Evidence 375, 376 of the evidence record). Moreover, considering that it is difficult to view that the Defendant’s withdrawal of the gift tax amount as KRW 1.380,000,000,000,000,000,000,000,00.

5) On September 21, 2015, the Defendant withdrawn only KRW 370 million out of the deposit KRW 2.77 billion deposited in the deceased’s account at the center located near the Seoul National University Hospital located in the branch of the Seoul National University Hospital.

B. In light of the deceased’s ordinary property management method, the deceased’s awareness status on the end of August 2015, and the motive and scale of the Defendant’s donation, etc. as indicated in the foregoing facts, even if the deceased was suffering from cancer around May 9, 2015, it was presumed that the Defendant expressed his/her intent to donate to the Defendant in writing or expressed such intent at the seat of another family member, etc. However, even if he/she did not prevent any dispute after the Defendant’s death, it is presumed that the Defendant expressed his/her intent to donate the amount equivalent to the deposit amount. Accordingly, it is difficult to believe that the said M’s statement is inconsistent with the foregoing, and even if the prosecutor collected evidence submitted, it cannot be deemed that this part of the facts charged is proven to the extent that there is

4. Conclusion

Therefore, since this part of the facts charged constitutes a time when there is no proof of crime, each not guilty of the act of forging private documents and uttering of falsified investigation documents in accordance with the latter part of Article 325 of the Criminal Procedure Act, and as long as it is found guilty of the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud) which was prosecuted as a single comprehensive crime,

It is so decided as per Disposition, and the defendant agrees to the decision of not guilty.

As such, public announcement of judgment of innocence shall not be pronounced in accordance with the proviso of Article 58 (2) of the Criminal Act.